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Jack Weinstein

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Today we have a question that makes me think of the current attempt to get electors to abandon Donald Trump and vote for Hillary Clinton.

A reader writes:

Long before the election, my class was discussing the Electoral College, and one student opined that it should be kept because the popular vote doesn’t accord with the electoral vote only some of the time. This got me thinking, “Would we find it acceptable if the popular vote never matched the electoral vote?” It would seem that whatever makes it acceptable to have the popular vote not match the electoral vote in some instances, would also make such an outcome acceptable in every instance. Or, conversely, whatever makes it unacceptable to have the popular vote not match the electoral vote in every instance, would also make such an outcome unacceptable in each instance. But perhaps I’m missing something, so I thought I’d see what you have to say in regard to the argumentation.

This is a good, interesting, and relevant question. Let me put it another way: if it is okay for the Electoral College to contradict the popular vote once in a while, why isn’t it okay for it to do so all the time? How can opposing the popular vote be right only some of the time?

I think there are two possible options, depending on what we regard the purpose of the Electoral College to be. Is its purpose insurance or to be a representative body?

First, let’s assume the standard interpolation of the Electoral College. That is, that it’s job is to be a last-ditch effort to protect the country from a demagogue who fools the public into voting for him. If this is the case, then the Electoral College should be regarded as insurance, and, as with all insurance, it is a great thing to have but we hope we never have to use it. We pay hoping to waste our money in the process.

If the Electoral College contradicts the popular vote under different conditions, if, for example, the candidate is not dangerous or a demagogue, and if, instead, the different outcome is just the result of electoral politics, then a president who did not win the popular vote is just something we have to endure to preserve the protection we might someday need. In such a case, an unwanted president is the “price” of the Electoral College.

In other words, this justification of the Electoral College is utilitarian. We are willing to accept some bad stuff for the greater good.

My personal feeling, by the way, is that the Electoral College fits this first description, and, as such, if it does not protect us from Trump, it will not protect us from anyone, so it could no longer be justified. Of course, others would disagree with this conclusion, especially since the last time the popular vote was disregarded it was also for a Republican president. Defending the Electoral College has become a partisan issue.

The second possible justification is more of a deontological one— it is built on a principle that allows for no exception. It regards the idea of representative government in its strongest from, regarding electors themselves as representatives, not protectors, per se.

If we regard Electors as representatives— if we see them like Congress members, as specialists who have more refined political senses than the layperson—then we can think of the popular vote as only advisory rather than binding. In other words, when the general populace votes and expresses its will, the Electors ought to consider it as only one of many factors, and then vote based on their personal judgment. This may or may not assume their personal judgment is better, but it does regard their representative role as having more authority to choose the president than an average voter.

There are, incidentally, good portrayals of this point of view in both the movie the American President, and in an episode of The West Wing called “The Lame Duck Congress.” In the latter, when faced with deciding whether to approve a nuclear treaty against the wishes of 82% of the voters, President Bartlett says:

‘Can I tell you something, honestly? This is one of those situations where I couldn’t give a damn what the people think. The complexities of a global arms treaty, the technological, the military, the diplomatic nuances, it’s staggering, Toby. 82% of the people cannot possibly be expected to reach an informed decision.”

(Watch the West Wing clip here and the American President clip here).

So, if this second point of view is correct, if the general population is advisory, then the Electoral College’s decision is, by defniition, always right, regardless of whether it agrees with the popular vote or not.

It is worth mentioning that the problem of the voter knowledge is one of the most central philosophical debates in democratic theory, going all the way back to Plato. Plato considered democracy to be rule by the ignorant, and it wasn’t until the 18th century that philosophers developed enough respect for common opinon that they were willing to give popular vote any authority at all (and, of course, the qualified voters were narrowly defined as white men).

Voter knoweldge is also a point of contention in the debate between John Locke and Jean Jacques Rousseau. Or to put it another way, it is a dividing line between the American model of democracy that assumes people’s idea of their own interest is more important than their knowledge, and the French model of democracy that assumes that personal interest is secondary to collective knoweldge, or the Republic’s interests. But that is a conversation for another time.

To sum up my answer to E.B.’s question, then: if the Electoral College is insurance, then we have to put up with a couple unjustified conflicts in order to protect ourselves against potential serious dangers. In that case, the Electoral College must agree with the popular vote in most but not all instances, and when it doesn’t, if it isn’t in the most dire of circumstances, then it is a necessary evil.

But if the Electoral College plays a representative role, and the general popular vote is advisory, then it is theoretically possible for the Electoral College to disagree with the majority every single time and still be legitimate. In this case, the popular vote will always be secondary to the judgement of its representatives. Or, as President Bartlett puts it immediately after his comment above: “You know we forget sometimes, in all the talk about democracy, we forget it’s not a democracy, it’s a republic. People don’t make the decisions, they choose the people who make the decisions. Could they do a better job choosing? Yeah. But when you consider the alternatives,…”

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